Wednesday, March 24, 2010

Decision in 'Solowicz v. Forward Geneva National' 2010 WI 20

Wisconsin Supreme Court decision today in this case (2008AP10) affirming the Court of Appeals, 2009 WI App 9. See Argument.

Opinion by Justice Roggensack, joined by Justices Crooks, Roggensack, Ziegler, and Gableman.
¶2 ... We conclude that ch. 703 does not apply to the Community Declaration because the Community Declaration is not a document that creates condominiums. Rather, the Community Declaration provides the overarching development scheme for Geneva National, a 1,600 acre planned community. Moreover, the Community Declaration does not contravene the protections of ch. 703 because the Developer does not exercise particularized day-to-day control over individual condominiums; rather, particularized day-to-day control of the terms of individual condominiums is vested in the unit owners. Furthermore, because the terms of the Community Declaration are unambiguous, those terms are not required to be reasonable, as well as unambiguous, in order to be enforceable.
Concurrence by Chief Justice Abrahamson.
¶65 Although couched in terms of a declaratory judgment, the relief the plaintiffs seek is for the court to trigger the provision terminating the developer's powers and control. As a practical matter, the plaintiffs ask the court to oust the developer from the governance of Geneva National. Rather than invoking "reasonableness" as a shield to protect against unjust enforcement of the Community Declaration by the developer, the plaintiffs seek to use "reasonableness" as a sword——or at least as a sharp pen with which to rewrite the Community Declaration. The plaintiffs' allegations of unfair control in this case do not justify the potentially dramatic and laborious relief which they ask from the court.
Concurrence by Justice Bradley, joined by Justice Prosser.
¶68 In 2008, the Uniform Law Commission (ULC)[footnote omitted] approved amendments to the Uniform Common Interest Ownership Act. The amendments address a range of significant conflicts between unit owner associations and the individual members of those associations that had arisen in the years since 1994, when the ULC had last considered amendments to this uniform act.
¶70 Both uniform acts address aspects of association governance, with particular focus on the relationship between associations and individual members. As common ownership increases, so do the complexities and controversies associated with that form of ownership. Therefore, I suggest that the chief of the legislative reference bureau consider reporting this decision to the law revision committee to examine whether legislation should be enacted to address this evolving area of law. See Wis. Stat. §13.92(2)(j).
Concurrence by Justice Prosser.
¶112 As I see it, petitioners have presented a convincing picture of one-sided control by the developer. However, they have not constructed a compelling argument that the Community Declaration that affords this control is unlawful. They have not pointed to specific Wisconsin statutes that invalidate the Community Declaration nor have they persuaded any justice that "public policy" permits and requires this court to rewrite a 70-page document to give them a better deal. The truth is, this court is not in a position to concoct a remedy for every alleged wrong. In my view, the petitioners have made a strong case for the Wisconsin legislature to adopt the Uniform Common Interest Ownership Act to provide additional protections to unit owners.
See 2009-2010 Term of the Wisconsin Supreme Court.

Supreme court says planned community does not contravene the Condominium Ownership Act, by Deborah G. Spanic, State Bar of Wisconsin